The staff of the Committee on Open Government is authorized to
issue advisory opinions. The ensuing staff advisory opinion is
based solely upon the information presented in your correspondence.

Dear Mr. Bliss:

I have received your letter of May 20. You referred to
earlier correspondence in which it was advised that you appeal a
constructive denial of a request for records directed to the New
York City Police Department. Following your appeal dated March 25,
you received a reply dated May 9 and postmarked May 17 stating
that:

"This is in response to your appeal from the
constructive denial by the Records Access
Officer of records requested from the New York
City Police Department.

"The Records Access Officer's constructive
denial of your request for records pursuant to
the Freedom of Information Law is overturned.
I have directed that a response be forwarded
to you as soon as possible.

"You may seek judicial review of this
determination by commencing an Article 78
proceeding within four months of the date of
this decision."

You have asked whether the response indicates that your
request has been denied and whether you can initiate an Article 78
proceeding despite the Department's failure to determine the appeal
within the time prescribed by the Freedom of Information Law.

In this regard, on the basis of the response, I cannot
ascertain whether the records that you requested will be granted or
denied in whole or in part. I believe, however, that in accordance
with §89(4)(a) of the Freedom of Information Law, the Department
in
determining an appeal is required either to grant access to the
records or fully explain the reasons for further denial. The
response that you received did neither but rather indicates that
you will receive an additional reply, presumably granting or
denying access.

Second, if the Department determines to deny access, I believe
that you would have the right to initiate a proceeding under
Article 78 of the Civil Practice Law and Rules. As I understand
Article 78, you may initiate a proceeding within four months of an
agency's final determination.

This office does not maintain materials pertaining to the
means by which Article 78 proceedings may be initiated. It is
suggested that your facility librarian might be able to acquire the
information from other sources on your behalf.